I've been doing a lot of thinking lately about people's psychological relationships with their property. On this subject, today's NY Times has a fascinating story about family heirlooms and the complex feelings that they generate.

Because here at propertyprof we sometimes talk about how mere passage of time confers a certain dignity on property, however insignificant it started out, I thought you'd find this article from the New York Times of some amusement: it's advice on how to deal with family heirlooms (and how not to get burdened by them). I've been dealing with some of this of late as I've been organizing my office. Books that I've been dragging around for decades--even though I'm no longer interested in their subject (e.g., Railroads and Rate Regulation in the early twentieth century--that's an artifact from my days of work on Progressive era administrative law)--I just can't part with.

My favorite piece of advice: "If you pay to move a piece across the country, you can do whatever you want with it."

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This paper provides an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can piggyback on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e. outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

Ben Barros

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In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.

Ben Barros

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Lyle Denniston at Scotusblog notes that Justice Alito took the unusual step of noting that he would have voted to grant cert in Goldstein v. Pataki, the public use case involving the Atlantic Yards development in Brooklyn. As Ilya Somin comments, this could be a way of signaling disagreement with Kelo. Of course, Justice Alito replaced Justice O'Connor, who dissented in Kelo, and the five-member majority in Kelo is still on the Court.

Ben Barros

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I was facing a grading deadline and missed this when it came out, but Eduardo Penalver and Ilya Somin had an interesting blogospheric discussion about whether homes should be given additional protection from eminent domain relative to other types of property. Ilya's last post on the subject contains links to the earlier portions. I have supported this sort of disparate treatment before (here and here), as have a number of other property scholars. It is interesting to see some real-world application.

Out in Seattle Judge Marsha Pechman (W.D. Wash) has been conducting a trial over whether the Seattle Sonics must abide their lease with of the city's KeyArena for the next two years or whether they can move immediately to their new home of Oklahoma City. Interesting stuff, whether the city can require specific performance of the lease; I think the case for specific performance is strong here. It looks like there isn't a material breach of the lease by the city, only by the team, so the question is one of remedies.

Which will it be, then, damages or specific performance? Now, courts are obviously (and for good reason) reluctant to give affirmative injunctions. I wouldn't be holding my breath for an affirmative injunction requiring the team to play in the KeyArena. But I think here that a negative injunction--you can't play anywhere else when you're scheduled to play home games--may be appropriate. Why would a negative injunction be superior to damages?

The question is whether harm is irreparable (with apologies to Doug
Laycock!)--and irreparable injury is determined by whether we can
measure the damage in dollars. I don't think we can--or at least we
can't with the specificity that we usually demand. The damages to the city are going to be somewhat are to compute--how much lost revenue will there be (not just from the stadium lease, but from the Sonics overall)? There's been a lot of talk in the trial of how difficult (or not) it will be to gauge the lost revenue--and no surprise here the Sonics' owners say it'll be easy and the city says it'll be hard. The difficulty of computing damages is one of the key factors in determining whether you're entitled to an injunction and I think all the city needs to do here is make the case for computing damages look murky.

Of course, we also balance the equities in determining injunctive relief--do we think that the harm to the city of not granting the relief is substantially outweighed by the harm to the Sonics of granting relief? On this there's some important evidence. The city's interest is substantial--their beloved team is leaving; many people whose livelihood depends on the team are going to be hurt; the ripples will go out for a long way. What about the harm to the team? They claim they're going to lose $60 million over the next two years--that's a substantial harm, of course. But remember two things--first, that's their allegation. Second, that's balanced against the harm to the city.

For me (fan of aloha jurisprudence and other populist strains in property law) perhaps the most exciting piece of this equity puzzle is the public interest--which we typically consider in cases where there are interests at stake beyond the parties to the litigation. This is a great example of one of those cases and I think it points in favor of a negative injunction. The community's interest here (and remember this is an equitable question of whether we're going to allow a company to breach a contract and only pay money damages) is in favor of keeping the team for the fans, as well as the people in the city who need the work the home games generate. Anyway, we'll all know soon enough!